BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. F OPINION FILED MAY 2, 2008

Transcription

1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. F DAVINE PARKER, EMPLOYEE CLAIMANT STANT MANUFACTURING, EMPLOYER RESPONDENT #1 AIG CLAIM SERVICES, CARRIER RESPONDENT #1 SECOND INJURY FUND RESPONDENT #2 OPINION FILED MAY 2, 2008 Hearing before ADMINISTRATIVE LAW JUDGE ELIZABETH W. HOGAN, on February 1, Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas. Respondents represented by the HONORABLE BILL FRYE, Attorney at Law, Little Rock, Arkansas. Respondent #2 represented by the HONORABLE DAVID PAKE, Attorney at Law, Little Rock, Arkansas whose attendance was excused. ISSUES A hearing was conducted to determine the claimant s entitlement to payment of additional medical treatment and payment of expenses, additional temporary total disability benefits and attorney s fees. At issue is whether or not additional medical treatment is reasonable, necessary and related to the compensable injury pursuant to Ark. Code Ann After reviewing the evidence impartially without giving the benefit of the doubt to either party, Ark. Code Ann , I find the evidence does not preponderate in favor of the claimant. STATEMENT OF THE CASE The parties stipulated to an employer-employee-carrier relationship on July 20, 2006 at which time the claimant sustained a compensable back injury at a compensation rate of $ Medical

2 expenses and temporary total disability benefits were accepted. The claimant received short term disability benefits, ($26.00 daily from April 24, 2007 to August 22, 2007). The claimant s group health insurance, Blue Cross Blue Shield, has paid some expenses. The claimant also receives Social Security Disability benefits. A companion case to this claim is V. Murray v. Stant, WCC #F The claimant contends she remained symptomatic after the compensable injury, requiring surgery by Dr. Harold Chakales on June 28, The claimant seeks payment of medical expenses, temporary total disability benefits from April 17, 2007 to a date yet to be determined, and attorney s fees. The claimant contends that any benefits owed after December 2006 have been controverted. The respondents contend additional medical treatment was unreasonable, unnecessary, and unrelated to the compensable injury. The following were submitted without objection and comprise the evidence of record: the parties prehearing questionnaires and exhibits contained in the transcript. The claimant was the only witness to testify at the hearing. The claimant was very loquacious and excitable in her demeanor. After cross-examination, she became emotional and left the hearing room. The claimant, age 56 (D.O.B. September 9, 1951) has a high school education. She has worked for the respondent-employer over twenty years. Her health history includes a prior back injury in 2002, with a 10% rating and a prior shoulder injury in 2004 with a 3% rating. On July 20, 2006 the claimant was sitting at a table with other co-workers packing auto parts in boxes. A forklift hit a corner of the table, pushing the table into the claimant s stomach and knocking her backward, (Tr. p. 7-8). The claimant requested medical treatment and was seen by Dr. Morris before being referred to Dr. Steven Cathey. 2

3 Dr. Cathey reviewed her MRI scan and opined that she was not a surgical candidate. The claimant continued to work part time from July, 2006 until April 2007 when she began treating with Dr. Chakales. Based on her complaints, the claimant was referred to Dr. Mocek for pain management and he administered injections. When the claimant tried to see Dr. Mocek in January, 2007 she was informed that the carrier was controverting the claim. The claimant used her group insurance to see her general practitioner, Dr. Toni Middleton, who referred the claimant to Dr. Chakales. He excused the claimant from work effective April 17, 2007 and the claimant began drawing short term disability benefits. In July, 2007 Dr. Chakales performed surgery. In August, 2007, the claimant called her employer and told them she would not be returning to work. The claimant now receives Social Security Disability benefits. She stated that despite the surgery, she had debilitating pain that would not allow her to return to work (Tr. p. 18, 58-62, 67-68). In discussing her health history, the claimant testified she had been treated by Dr. Steven Cathey for a June 17, 2002 work-related back injury. Surgery was performed on August 18, 2002 for a L5-S1 disc herniation and Dr. Cathey assessed a 10% impairment rating to the body as a whole. On October 20, 2002 the claimant was rear-ended in a motor vehicle incident. By November, 2002, Dr. Cathey noted improvement and released the claimant to return to work. The claimant stated she required no treatment for her back between August 2004 and July, 2006, the time of the accident in the case at bar. However, on cross-examination, Attorney Frye pointed out that medical records show similarities between the claimant s back symptoms for the 2002 accident and the 2006 injury; continuing use of medication; continuing treatment by a chiropractor and the claimant s family 3

4 physician, Dr. Middleton; and the need for additional diagnostic testing with MRI scans in 2003 and The last MRI scan showed an L5-S1 disc herniation. The claimant also missed about two months of work while being treated for her hands, neck and shoulders. Dr. Ethan Shock treated the claimant for a November 16, 2004 rotator cuff tear resulting in a 3% impairment rating, and Dr. Mike Moore treated the claimant for carpal tunnel syndrome. MEDICAL EVIDENCE The medical exhibit packets are not in chronological order and claimant s exhibit #22 was corrected to show a date of 2006 not Dr. Levy ordered an MRI scan on August 1, 2002 which was interpreted as showing a disc herniation at L5-S1 on the left with degenerative changes at L3-L4 and L4-5. Dr. Levy referred the claimant to Dr. Cathey on August 19, Dr. Cathey recorded complaints of low back, left hip and leg pain with numbness after a lifting incident at work. The claimant improved with physical therapy but remained symptomatic and surgery was performed on September 18, The surgery completely relieved the sciatica and numbness although the claimant still had some back pain, which was aggravated by a motor vehicle accident on October 28, Medical records from October 29, 2002 indicate the claimant complained of neck, shoulder and back pain after she was rear-ended in a MVA. She was diagnosed with a cervical and lumbar strain and given medication. She sought follow-up treatment from Dr. Jon Dodson. In his report of December 2, 2002, Dr. Cathey assessed a 10% rating to the body as a whole, but did not specify any work restrictions. 4

5 On December 17, 2002, the claimant returned to Dr. Cathey complaining of back pain radiating into both hips and legs. The claimant told him she was unable to work because of the pain. Dr. Cathey ordered an MRI scan to see if the MVA had caused structural damage. The January 7, 2003 study showed only scar tissue. Dr. Cathey returned the claimant to work at light duty. Dr. Cathey commented that the claimant s response to surgery was equivocal. She complained of improved but constant left hip and leg pain. Fifteen months later, the claimant returned to Dr. Cathey complaining of low back and left leg pain which she attributed to a change in her job duties. He commented, she is adamant that she really doesn t want to have any additional operative intervention. But she also complained that her medication, prescribed by her primary care physician, wasn t beneficial. Dr. Cathey recommended a Functional Capacity Evaluation (FCE) to evaluate the claimant s physical abilities and changed her medication. A clinic note dated April 17, 2006 shows the claimant complained of right leg pain which began 3-4 years earlier and chronic back pain. Her general practitioner x-rayed her leg which was negative. The claimant told the doctor that it felt like a pinched nerve but the pain had changed recently. The doctor continued her medications. Another clinic note of August 30, 2004 shows the claimant complaining of head, neck and shoulder pain. The doctor diagnosed tendinitis of the left shoulder and refilled her medications. Another MRI scan was performed on August 9, This test showed degenerative changes, especially at L5-S1 with a disc protrusion. Degeneration of the facet joints was also noted. After the injury in the case at bar, the claimant was treated conservatively by Dr. Gerald Morris beginning on July 20, She was diagnosed with a neck strain (x-rays showed 5

6 degeneration) and a left hip contusion. When her complaints continued, the doctor prescribed physical therapy and light duty. MRI scans, taken August 24, 2006, showed no neck injury but a cystic lesion was found at S2. On September 11, 2006, the claimant returned to Dr. Cathey. He reviewed the MRI scans and found no evidence of recurrent disc herniation, spinal stenosis, or nerve root impingement. He diagnosed her July 20, 2006 injury as musculoskeletal in nature. Dr. Cathey prescribed medication and returned the claimant to work whenever she feels she can handle herself there. The claimant saw Dr. Christopher Mocek in November, 2006 for pain management. The claimant reported low back pain radiating into both legs. Dr. Mocek diagnosed left L5/S1/S2 radiculopathy from nerve root irritation. He noted back spasms and suspected an annular tear at L5- S1. He stated that draining the cyst was an option, but would not relieve her pain entirely. Dr. Mocek administered an epidural steroid injection which provided no relief. The claimant continued to complain of back pain, bilateral leg pain and numbness in her heels. She requested another MRI scan. A December 7, 2006 MRI scan showed a Tarlov cyst at S2 with light abutment of bilateral exiting L5 nerve roots secondary to mild facet arthropathy. There was no evidence of a recurrent disc herniation. On December 12, 2006, Dr. Mocek drained the cyst in a surgical procedure. On March 7, 2007 the claimant saw her family physician and requested a referral to Dr. Chakales because she could not return to Dr. Cathey as her workers compensation coverage had stopped. The claimant saw Dr. Chakales on March 12, He ordered yet another MRI scan and an EMG/NCV study. The March 28, 2007 MRI scan showed degenerative disease. The April 10, 6

7 2007 EMG/NCV study was normal. Nevertheless, Dr. Chakales diagnosed sciatica of the left leg, degeneration, and residuals of prior back surgery. An April 17, 2007 CT/discogram showed calcification of the annulus at L4-L5 and loss of disc space height at L5-S1 consistent with degeneration. The claimant has some congenital anomalies which prevented the doctor from exploring the L5-S1 space. Dr. Chakales recommended a laminectomy and spinal fusion from L4 to the sacrum for failed back syndrome and bilateral sciatica. Surgery was performed on June 28, In follow-up reports, the claimant continued to complain of sciatica. Dr. Chakales opined that she was permanently and totally disabled in his reports of August 15, 2007 and January 21, FINDINGS AND CONCLUSIONS Employers must promptly provide medical services which are reasonably necessary in connection with the compensable injuries. Ark. Code Ann (a). However, injured employees have the burden of proving by a preponderance of the evidence that medical treatment is reasonably necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). What constitutes reasonable and necessary medical treatment is a fact question for the Commission, and the resolution of this issue depends upon the sufficiency of the evidence. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). Reasonably necessary medical services may include that necessary to accurately diagnose the nature and extent of the compensable injury; to maintain the level of healing achieved; or to prevent further deterioration of the damage produced by the compensable injury. Greer v. Phillip Mitchell Construction, Full Commission opinion February 14, 2003 (E906565). In assessing whether a given medical procedure is reasonably 7

8 necessary for treatment of the compensable injury, it is necessary to analyze both the proposed procedure and the condition it is sought to remedy. Deborah Jones v. Seba, Inc., Full Workers Compensation Commission, December 13, 1989 (Claim No. D511255). The evidence of record shows the claimant has complained of chronic back pain since Since she was receiving treatment before the July 2006 injury in the case at bar, we have comparative MRI scans to consider. Prior to her injury, the 2004 MRI scan showed degenerative changes and scar tissue from the 2002 surgery. The 2006 MRI scan showed a cyst, but no recent disc injury, stenosis or nerve root impingement. Dr. Cathey, who was the claimant s surgeon for the 2002 accident, opined that her 2006 injury was musculoskeletal in nature. As I interpret this medical evidence, the 2006 injury did not require surgical intervention, and in fact, the claimant did not benefit from Dr. Chakales surgery. 1. The Workers Compensation Commission has jurisdiction of this claim in which the relationship of employer-employee-carrier existed among the parties on July 20, 2006 at which time the claimant sustained a compensable injury. 2. Dr. Chakales treated the claimant for a degenerative condition, not a traumatic injury from Therefore, his treatment is unrelated to the compensable injury, unreasonable and unnecessary pursuant to Ark. Code Ann This claim for additional medical treatment and temporary total disability benefits is respectfully 8

9 denied. IT IS SO ORDERED. ELIZABETH W. HOGAN Administrative Law Judge 9